Atuk and Atuk and Anor - [2016] FamCA 179

FAMILY COURT OF AUSTRALIA

ATUK & ATUK & ANOR

[2016] FamCA 179

FAMILY LAW – PROPERTY – adjustment of property interest – where appropriate to make adjustive orders as to property - where consideration as to whether husband’s mother has equitable interest in the matrimonial home by way of express trust, resulting truest or constructive trust – discussion of applicable principles – where resumption of advancement in favour of the husband - where husband’s mother has no equitable interest – where exclusion from consideration various debts of the husband – where consideration of the parties contributions – where consideration of relevant s75(2) factors.

Conveyancing Act 1919 (NSW) s 23C
Family Law Act 1975 (Cth) ss 75(2), 79

Baumgartner v Baumgartner (1987) 164 CLR 137
Bevan& Bevan [2014] FamCAFC 19
Black Uhlans Inc v New South Wales Crime Commission & Ors [2002] NSWSC 1060
Buffrey v Buffrey [2006] NSWSC 1349
Calverley v Green [1984] 155 CLR 242
Cetojevic & Anor v Cetojevic[2007] NSWCA 33
Chapman & Chapman [2014] FamCAFC 91
Cierpiatka & Cierpiatka & Cierpiatka (1999) FLC 92-864
Dickons & Dickons [2012] FamCAFC 154
Muschinski v Dodds (1985) 160 CLR 583
Russell & Russell (1999) FLC 92-877
Ryan v Dries[2002] NSWCA 3
Scott & Danton [2014] FamCAFC 203
Shepherd v Doolan [2005] NSWSC 42
Stanford v Stanford [2012] HCA 52
Teal & Teal [2010] FamCAFC 120
Vadisanis & Vadisanis and Anor [2014] FamCAFC 97
Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387
West v Mead[2003] NSWSC 161

APPLICANT:

Ms Atuk

1st RESPONDENT:

Mr Atuk

2nd RESPONDENT:

Ms B Atuk

FILE NUMBER:

PAC

4209

2014

DATE DELIVERED:

24 March 2016

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Foster J

HEARING DATE:

23, 24 and 25 February 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Dura

SOLICITOR FOR THE APPLICANT:

McAuley Hawach Lawyers

COUNSEL FOR THE 1ST RESPONDENT:

Ms Friedlander

SOLICITOR FOR THE 1ST RESPONDENT:

Atila Lawyers

COUNSEL FOR THE 2ND RESPONDENT:

Ms Snelling

SOLICITOR FOR THE 2ND RESPONDENT:

Edrem Hussein Solicitor

Orders

That the husband and wife do all things necessary to authorise and direct that controlled monies presently held on trust for them be paid as follows:
(a) As to $254,194 together with pro rata interest accrued on that sum to the wife; and
(b) As to balance then remaining to the husband.
That any application for costs be by way of application in a case supported by affidavit filed within one month from this date.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Atuk & Atuk and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 4209 of 2014

Ms Atuk

Applicant

And

Mr Atuk and Ms B Atuk

Respondents

REASONS FOR JUDGMENT

A contribution to the cost of the purchase of what was to become the matrimonial home by the husband’s parents has complicated the question…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] FamCA 179
Decision Date: 24 March 2016

CaseChat Overview and Summary

In the matter of *Atuk and Atuk*, Foster J of the Federal Circuit and Family Court of Australia was required to determine the division of controlled monies held on trust between a husband and wife. The dispute concerned the equitable distribution of these funds following the breakdown of their marriage.

The central legal issue before the court was how to fairly allocate the controlled monies between the parties. This involved considering the existing trust arrangements and the respective entitlements of the husband and wife to those funds.

Foster J ordered that the controlled monies held on trust be divided. Specifically, the wife was to receive $254,194, along with any pro rata interest accrued on that sum. The remaining balance of the controlled monies was to be paid to the husband. The court also stipulated that any applications for costs were to be made by way of a formal application supported by affidavit, to be filed within one month of the date of the order.

Orders

Orders of the court

That the husband and wife do all things necessary to authorise and direct that controlled monies presently held on trust for them be paid as follows:

(a) As to $254,194 together with pro rata interest accrued on that sum to the wife; and

(b) As to balance then remaining to the husband.

That any application for costs be by way of application in a case supported by affidavit filed within one month from this date.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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